DEFENDERS
OF WILDLIFE, et al. v. CECIL D. ANDRUS, in his official capacity as Secretary of
the Interior, et al., APPELLANTS
No. 79-1410
UNITED
201
Submitted without Oral Argument
SUBSEQUENT HISTORY: [**1]
Rehearing Denied
PRIOR HISTORY:
Appeal from the
COUNSEL: Dirk D. Snel and Robert L. Klarquist, Attys.,
Karin P. Sheldon, Gregory A. Thomas and Thomas B. Stoel, Jr., Attys., Natural
Resources Defense Council, Inc.,
JUDGES: Before McGOWAN, LEVENTHAL n* and MacKINNON, Circuit Judges.
* Circuit Judge LEVENTHAL was a member of the panel assigned to hear this case.
He concurred in the decision to decide this case without oral argument, but died
and did not take part in the decision of the case.
Opinion
for the Court filed by Circuit Judge McGOWAN.
OPINIONBY: McGOWAN
OPINION: [*1239]
This is an appeal from an order of the District Court granting a preliminary
injunction against the Secretary of the Interior. It raises the question of
whether, under the circumstances of this case, the National Environmental Policy
Act obligates the Secretary to prepare and circulate an environmental impact
statement when he does not act to prevent the State of Alaska from [*1240]
conducting, as [**2] part of a wildlife-management program, a wolf
hunt on certain federal land. Because the Secretary's conduct here does not
constitute a "major Federal action" within the meaning of the Act, we
hold that the Secretary is not so obligated, and we reverse.
I
The Background of this Action
On February 16, 1979, the Alaska Department of Fish and Game (ADFG) announced a
program whose aim was to kill from aircraft 170 wolves (approximately sixty
percent of the wolf population) in an area of 35,000 square miles in the
interior part of the state. Many, perhaps most, of the wolves were to be killed
on federal lands for which the Department of the Interior is responsible. On
February 23, counsel for one of the appellees, Natural Resources Defense
Counsel, Inc., asked the Department to prepare an environmental impact statement
for
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n1. Appellees (plaintiffs below) are Defenders of Wildlife; Natural Resources
Defense Council, Inc.; International Fund for Animal Welfare; The Humane Society
of the
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The complaint predicted that, although the wolf hunt was proposed in order to
increase the number of moose in the region by decreasing the numbers of their
major predator, it would in fact weaken the moose herds by ending a
"culling process (which) is natural selection in action, and (which)
assures survival of the fittest moose . . ." and would devastate the wolf
packs even beyond the ADFG's estimates. This interference with these two major
species, the complaint continued, would disrupt the ecology of the entire area.
The complaint asserted that [**4] the Federal Land Policy and
Management Act (FLPMA), 43 U.S.C. § 1701 et seq., authorizes the Secretary of
the Interior to prevent the killing of wildlife on federal lands and requires
him to evaluate whether he must intervene if he is fully to serve the
environmental concerns of the Act. The complaint claimed as one of its
"Violations of Law" that appellants failed to make that evaluation.
The other violation of law the complaint alleged is that appellants had, but
failed to meet, an obligation under § 102(2)(C) of the National Environmental
Policy Act (NEPA), 42 U.S.C. 4321 et seq., to prepare an environmental impact
statement before deciding not to prevent Alaska from killing wolves on Federal
land.
On March 13, 1979, the United States District Court for the District of Columbia
issued a temporary restraining order which enjoined appellants to "take all
steps necessary to halt the aerial killing of wolves by agents of the State of
Alaska" on the relevant federal lands. Although
On
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n2. On appeal, the Secretary presses the argument that the District Court erred
in denying the latter of these requests. Since we reverse the District Court's
order on other grounds, we need not reach that argument.
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The District Court then weighed the merits of the motion for a preliminary
injunction in the scales this court constructed in Virginia Petroleum Jobbers
Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921
(1958). The District Court came to the following conclusions:
(1) Plaintiffs [**6] would be irreparably harmed if no injunction
were issued, since without one, the killing of wolves would soon begin and the
natural environment of the federal lands would thereby be damaged. Further,
plaintiffs' rights under NEPA to an impact statement would be irretrievably lost
if the wolves were killed before the statement was written.
(2) An
injunction would not unduly injure the defendants, since they had not invested
time or resources in the program to hunt wolves.
(3) "There exists a strong public interest under NEPA in having federal
officials consider the potential environmental effects on national lands and
resources prior to the occurrence of a highly controversial and potentially
devastating wolf control program."
(4) There was a substantial likelihood plaintiffs would win on the merits.
As to those merits, the District Court believed it was "confronted with a
simple question: Does NEPA require the Secretary of the Interior to prepare an
EIS prior to permitting an extensive wolf kill to take place on federal
lands?" The District Court reasoned that FLPMA requires the Secretary
"to manage and plan the use of federal lands" and that "clearly,
[**7] an environmental assessment of the wolf elimination program
must be part of the decision making process." The District Court therefore
issued a preliminary injunction which required appellants "to prevent any
such killing of wolves pending preparation of an environmental impact statement
on the potential effects of the wolf control program."
II
Earlier Related Cases
This is not the first time a federal court has been asked to order the Secretary
of the Interior to keep
Judge Gasch decided, after examining the language and legislative history of
FLPMA and ANCSA, that the Secretary does have that authority. Judge Gasch did
not reach the question of what obligations ANCSA imposed on the Secretary, but
he did conclude that "plaintiffs have shown a very substantial likelihood
of success on the merits of their claim that defendants have violated the
requirements of NEPA by not preparing an environmental impact statement . . .
." Defenders of Wildlife v. Andrus, 9 ERC at 2118. Judge Gasch therefore
granted the request for a preliminary injunction.
After that injunction issued, the Secretary ordered the Governor of Alaska, by
telegram, not to kill wolves on the relevant federal land. Alaska complied, but
brought an action in the District Court for Alaska (the Hon. James von der Heydt)
which asked the court to declare the Secretary's order a violation of the Alaska
Statehood Act, 48 U.S.C. Chap. 2, § 6(e), and to enjoin the Secretary to
withdraw that order.
The state and the intervenors appealed to the Court of Appeals for the Ninth
Circuit. n3
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n3. The Secretary also appealed. Before the case was decided, however, he
reversed his earlier stand by concluding he had authority to close federal lands
to
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Meanwhile, the Secretary had appealed from [**11] Judge Gasch's grant
of a preliminary injunction. Defenders of Wildlife v. Andrus, 193 U.S.App.D.C.
217, 593 F.2d 1371. On
III
Scope of Review
A preliminary injunction, of course, is an extraordinary remedy which a district
court has discretion to grant or deny, and a grant of that remedy may generally
be reversed only when the court has abused its discretion. However, as we said
in Natural Resources Defense Council v. Morton, "a greater amplitude of
judicial review is called for when the appeal presents a substantial issue that
the action of the trial judge was based on a premise as to the pertinent rule of
law that was [**12] erroneous." 148 U.S.App.D.C. 5, 10, 458 F.2d
827, 832 (D.C. Cir. 1972). This appeal presents such an issue, and that
"greater amplitude of judicial review" requires us here to review
"fully and de novo," Delaware & Hudson Ry. Co. v. United Transp.
Union, 146 U.S.App.D.C. 142, 159, 450 F.2d 603, 620 (D.C. Cir. 1971), cert.
denied, 403
IV
The Secretary's Obligations Under NEPA
In 1973, Congress came to feel "that our Nation's present state of
knowledge, our established public policies, and our existing governmental
institutions are not adequate to deal with the growing environmental problems
and crises the Nation faces." S.Rep. 91-296, 91st Cong., 1st Sess. 4
(1969). Congress therefore passed the National Environmental Policy Act, a law
whose purpose is "to declare a national policy which will encourage
productive and enjoyable harmony between man and [**13] his
environment; (and) to promote efforts which will prevent or eliminate damage to
the environment and biosphere and stimulate the health and welfare of man . . .
." 42 U.S.C. § 4321. To ensure that federal agencies act to effectuate
that purpose by anticipating and assessing the environmental consequences of
their programs, Congress in section 102(2)(C) of NEPA required agencies to
include in every recommendation or report on proposals for legislation and other
major Federal actions significantly affecting the quality of the human
environment, a detailed statement by the responsible official on
(i) the environmental impact of the proposed action . . . .
42 U.S.C. § 4332(2)(C).
Such "action-forcing" provisions of NEPA, we have said, "are not
highly flexible. Indeed they establish a strict standard of compliance."
Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Commission, 146
U.S.App.D.C. 33, 36, 449 F.2d 1109, 1112 (D.C. Cir. 1971).
A
Having laid out the statutory background of this action, we turn to the specific
issue we must resolve. Does NEPA require that the Secretary prepare and
circulate an environmental impact statement in the circumstances [**14]
of this case? n4
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n4. The Ninth Circuit, of course, has already answered this question in the
negative.
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Our discussion of that question must center around the fact that, while the
plain language of the statute calls for an impact statement when there is
"major Federal action," here it is the Secretary's inaction which is
complained of. Appellees, as we understand them, respond that (1) the
environmental consequences of inaction may be greater than the consequences of
action, and (2) the purpose of the statute is to ensure that environmentally
informed decisions are made, not simply that the environmental consequences of
all federal programs are considered. We acknowledge the truth of the first
response, but we do not understand it to change the language of the statute.
As to the second response, we agree [**15] that a purpose of the
statute is to ensure that environmentally informed decisions are made.
Nevertheless, as it is written, NEPA only refers to decisions which the agency
anticipates will lead to actions. This common-sense reading of the statute is
confirmed by the statutory directive that the impact statement is to be part of
a "recommendation or report" on a "proposal" for action.
That is, only when an agency reaches the point in its deliberations when it is
ready to propose a course of action need it be ready to produce an impact
statement. As the Supreme Court said in Andrus v. Sierra Club, "Of course
an EIS need not be promulgated unless an agency's planning ripens into a
"recommendation or report on proposals for legislation (or) other major
Federal actions significantly affecting the quality of the human environment.'
", 442
The seriousness with which the Supreme Court takes the requirement of a proposal
to act is illustrated [**16] by Kleppe v. Sierra Club, 427
Quite apart from the fact that the statutory language requires an impact
statement only in the event of a proposed action, respondents' desire for a
regional environmental impact statement cannot be met for practical reasons. In
the absence of a proposal for a regional plan of development, there is nothing
that could be the subject of the analysis envisioned by the statute for an
impact statement.
427
Similarly, the Court insisted in Aberdeen & Rockfish Railroad v. SCRAP
(SCRAP II) that the time at which the agency must prepare the final
"statement" is the time at which it makes a recommendation or report
on a proposal for federal action. Where an agency initiates federal action by
publishing a proposal and then holding hearings on the proposal, the statute
would appear to require an impact statement to be included in the proposal and
to be considered at the hearing. Here, however, until the October 4, 1972,
report, the ICC had made no proposal, recommendation, or report. . . . Thus, the
earliest time at which the statute required a statement was the time of the
ICC's report of October 4, 1972 some time after the oral hearings.
422
None of this is to say that agencies may, by manipulating the time at which they
actually develop recommendations or reports on proposals, seek to avoid or
perniciously to delay preparing an impact statement. It is simply to confirm
that Congress did not expect [**18] agencies to prepare statements if
there is to be no action.
B
Appellees argue that, by not inhibiting an action of a private party or a state
or local government, the federal government makes that action its own within the
meaning of NEPA. However, in no published opinion of which we have been made
aware has a court held that there is "federal action" where an agency
has done nothing more than fail to prevent the other party's action from
occurring. Even here courts have not abandoned the requirement that it must be a
specifically federal action which triggers the preparation of an impact
statement. To borrow from the language of the criminal law of conspiracy, we may
say that federal "approval" of another party's action does not make
that action federal unless the federal government undertakes some "overt
act" in furtherance of that other party's project. Thus, when the Supreme
Court discussed two circuit court decisions which held that private actions
permitted by the federal government might necessitate the preparation of an
impact statement, the Court's examples of federal "permission" were
such concrete acts as decisions "to issue a lease, approve a mining plan,
issue a right-of-way [**19] permit, or take other action to allow
private activity . . . ." Kleppe v. Sierra Club, 427
[*1245] Appellees quote language from our decision in Scientists'
Institute for Public Information, Inc. (SIPI) v. Atomic Energy Commission, 156
U.S.App.D.C. 395, 404-05, 481 F.2d 1079, 1088-89 (1973):
(T)here is "Federal action" within the meaning of the statute not only
when an agency proposes to build a facility itself, but also whenever an agency
makes a decision which permits action by other parties which will affect the
quality of the environment. NEPA's impact statement procedure has been held to
apply where . . . the federal agency took action affecting the environment in
the sense that the agency made a decision which permitted some other party
private or governmental to take action affecting the environment.
Quoted in Appellee's Brief at 26-27 (footnotes omitted by appellees). However,
an examination of the material which appellees deleted reveals that nothing in
the quotation can legitimately be construed as saying that there can be
"Federal action" without an "overt act." In the deleted [**20]
material, the court gave instances of the kind of federal approval of a
non-federal project which constitutes "Federal action." The second
sentence of the above quotation reads in full:
NEPA's impact statement procedure has been held to apply where a federal agency
approves a lease of land to private parties, grants licenses and permits to
private parties, or approves and funds state highway projects.
SIPI, 156 U.S.App.D.C. at 404, 481 F.2d at 1088 (footnotes omitted).
Appellees seek, but we believe fail to find, support not only from the language,
but also from the holding in SIPI. The issue in that case was whether the Atomic
Energy Commission had to issue an impact statement for a Liquid Metal Fast
Breeder Reactor program which had been begun many years before and was expected
to continue for many years after we decided the case. The Commission argued that
it needed only to prepare impact statements for individual test facilities, but
we held that a statement was also needed for the whole program. While it is
true, as appellees note, that private companies participated in and expected to
benefit from the program, frequent federal reports, the participation of
numerous [**21] government employees, and the expenditure of hundreds
of millions of federal dollars were "overt acts" in plenty.
In their effort to show that any federal acquiescence in another party's project
constitutes "Federal action," appellees cite us to Professor Rodgers'
treatise:
(T)he distinguishing feature of "federal" involvement is the ability
to influence or control the outcome in material respects. The EIS process is
supposed to inform the decisionmaker. This presupposes he has judgment to
exercise. Cases finding "federal" action emphasize authority to
exercise discretion over the outcome.
Appellees' Brief at 27, quoting W. Rodgers, Environmental Law 763 (1977). The
ability to influence the outcome of the project is certainly a necessary
condition of "Federal action," but it is not a sufficient condition,
as a look at the passage of the treatise which precedes the passage quoted above
makes clear. There, Professor Rodgers catalogues the kind of sanctioning of
private, state or local activity (which) could constitute "major federal
action." Thus, federal license, permits, leases, loans, grants, insurance,
contracts, contract extensions and modifications, conveyances, [**22]
assistance authorizations, approvals of right-of-ways, or filings in appropriate
cases may require preparation of an impact statement although the federal
presence is minimal.
C
Our somewhat exact reading of section 102(2)(C) and our insistence on an
"overt act" may seem literal and formalistic. But our approach is not
only consonant with, but is commanded by, the principles and spirit of NEPA.
This court has had occasion before to rule on requests that environmental impact
statements be required beyond [*1246] the bounds of the possible. In
Sierra Club v. Andrus, 189 U.S.App.D.C. 117, 581 F.2d 895 (1978), we were asked
to require the Department of the Interior to prepare statements to accompany
appropriation requests for all programs having significant environmental
consequences. We declined to do so except "when the request for budget
approval and appropriations is one that ushers in a considered programmatic
course following a programmatic review."
Plaintiffs' logic-based contention . . . leads logically to the conclusion that
an EIS would have to accompany every budget request for the annual operation of
an environmental-conservation program, or indeed of an agency whose activities
may have significant environmental impact. The principle of reductio ad absurdum
is part of the landscape of logic. Plaintiffs have not suggested a limiting
principle to their logic.
. . . There is a danger of overburdening NEPA by spreading its mandate too
widely. The environmental analysis required by NEPA is governed by the rule of
reason, as we have held in determining the scope of realistic alternatives to
the proposed action and the intensity of the required analysis. A rule requiring
preparation of an EIS on the annual budget request for virtually every ongoing
program would trivialize NEPA. . . .
NEPA has been salutary in heightening agency attention to environmental values,
in part by requiring disclosure of environmental consequences. However, we
cannot allow NEPA to be bloated, and indeed enfeebled, by pushing the logic of
Section 102(2)(C) to ridiculous extremes. NEPA does not require an annual EIS on [**24]
routine operation and maintenance of every program with significant
environmental ramifications. Its rule of reason does not demand rethinking of
everything all the time.
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n5. The Court's holding rested only in part on the reasoning described in the
quotations from our opinion in Sierra Club v. Andrus.
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NEPA would be impaired in the manner of which we warned in Sierra Club v. Andrus
were we now to decide for appellees. No agency could meet its NEPA obligations
if it had to prepare an environmental impact statement [**25] every
time the agency had power to act but did not do so. Nor does it suffice to say
that an agency's burden would be kept to a reasonable level by the fact that no
impact statement is needed when the inaction could have no significant
environmental results, for we have held that an agency which decides not to
issue an impact statement must provide a written explanation of its reasons for
that decision. See, e. g., SIPI, 481 F.2d at 1094. This requirement is necessary
to ensure that the agency's decision is well-considered and to provide a basis
for the judicial review of the agency's decision. It would be an imaginative and
vigorous agency indeed which could identify and prepare all the statements and
explanations appellees' reading of NEPA would have the statute demand.
In a letter to the Department of Justice, the General Counsel of the Council on
Environmental Quality (CEQ) the agency established in part to oversee the
implementation of NEPA recognized that an over-expansive interpretation of
section 102(2)(C) could create a serious administrative burden on Federal
agencies. There are literally thousands of decisions which Federal officials
[*1247] are authorized to and [**26] could conceivably
make under existing law. If the mere existence of this authority was a basis for
invoking NEPA regardless of whether a Federal decision was required to be or had
been made the scope of the environmental review process would be vastly
expanded. n6
6. This letter was originally submitted to us as an attachment to a joint
memorandum submitted after oral argument when our Court considered its first
case styled Defenders of Wildlife v. Andrus. See Part II of this opinion. It is
referred to in the record and was resubmitted to us as an attachment to
appellants' Reply Brief. It was written January 10, 1979, by Mr. Nicholas Yost,
General Counsel of the Council on Environmental Quality, in response to a
request of the Department of Justice (which was at the time representing the
Secretary and his co-defendants) that the CEQ express its views as to whether
section 1508.18 of the CEQ's new regulations would require the Department of the
Interior to prepare an environmental impact statement under the facts of that
case. Since the circumstances and parties of that case and the case now before
us are for these purposes virtually indistinguishable, and since "CEQ's
interpretation of NEPA is entitled to substantial deference," Andrus v.
Sierra Club, 442
The new "Regulations for the Implementation of the Procedural Provisions of
the National Environmental Policy Act" which prompted the letter appear in
43 Fed.Reg. 55978 et seq. (November 29, 1978). They became mandatory on July 30,
1979 after the appeal in this case reached our court, though section 1506.12 of
the regulations states: "These regulations shall apply to the fullest
extent practicable to on-going activities and environmental documents begun
before the effective date."
"Major Federal action" includes actions with effects that may be major
and which are potentially subject to Federal control and responsibility. . . .
Actions include the circumstance where the responsible officials fail to act and
that failure to act is reviewable by courts or administrative tribunals under
the Administrative Procedure Act or other applicable law as agency action.
Mr. Yost's letter first noted that the regulations had not yet taken effect. The
letter next stated its understanding that this was a case in which no federal
decision was required to be made and in which no federal decision had been made.
The letter then enunciated the principle that an EIS need not be prepared . . .
where no Federal decisions are required and none have been made. Without a
Federal decision whether that decision be to act or to refrain from acting there
can be no "major Federal action" under NEPA.
The letter proceeded to compare that principle with the CEQ's new regulations:
Section 1508.18 of the NEPA regulations is consistent with this principle. The
reference in that Section to "a failure to act" was not intended by
the Council to require the preparation of an EIS where no Federal decision was
required and none had been made. The phrase "failure to act" was
intended rather to describe one possible outcome in those situations where a
Federal decision had been or was required to be made.
We recognize that the practical effect of a decision not to act and no decision
at all is the same in the circumstances of this case. In both cases, State
activities on Federal lands may proceed.
At some level, of course, an agency cannot avoid "deciding" whether to
act when, as here, it has been asked to act and has declined to do so. That is
the point of the clichee that "not to decide is to decide." However,
as to the case before us, the CEQ and we seem to be in essential agreement.
First, we understand appellees to be saying that the Secretary has not
"decided," and our discussion in Part V of this opinion of NEPA's
allocation of responsibilities between the states and the Secretary indicates
that the Secretary was not compelled to "decide" in any useful sense
of that word. Second, the CEQ and we are making the same point: that "(a)
primary goal of the Council's regulations is to provide practical and realistic
parameters for the environmental review process," and that a requirement
that an agency write an impact statement every time it does not exercise its
power to act is not such a "parameter."
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We have said, and we still believe, that "considerations of administrative
difficulty, delay or economic cost will not suffice to strip the section of its
fundamental importance." Calvert Cliffs' Coordinating Committee v. Atomic
Energy Commission, 149 U.S.App.D.C. 33, 39, 449 F.2d 1109, 1115 (1971). But the
obligation appellees would have us impose goes beyond the difficult and well
into the impossible. Neither NEPA's language, nor the precedent interpreting it,
nor the public policy behind it, requires us to reach that result.
V
The Relationship of NEPA and FLPMA
The District Court and appellees believe that the above analysis of the
Secretary's [*1248] duty under NEPA is insufficient. They reason
that FLPMA imposes such supervisory duties on the Secretary that every failure
to prohibit a state wildlife program which is carried out on Federal land and
which may have significant environmental consequences must be accounted for with
an impact statement. The District Court decided that the Secretary has a
nondiscretionary duty to plan for and manage federal land and resources. In view
of this responsibility, the Secretary must prohibit any major actions
significantly affecting [**28] the human environment from occurring
on federal lands until an environmental impact statement has been prepared and
circulated. Accordingly, until an EIS has been prepared, the Secretary must take
appropriate action to prevent aerial wolf killing on federal lands by the State
of
Mem. Op. at 5.
FLPMA, which is also referred to as the Bureau of Land Management Organic
Statute, was enacted "to provide the first comprehensive, statutory
statement of purposes, goals, and authority for the use and management of about
448 million acres of federally-owned lands administered by the Secretary of the
Interior through the Bureau of Land Management." S.Rep.No.94-583, 94th
Cong., 1st Sess. 24 (1975). As such, it certainly imposes on the Secretary a
general duty "to plan for and manage federal land and resources."
However, the District Court's reasoning seems to us to upset an allocation of
functions Congress carefully and explicitly made in FLPMA, for Congress there
assigned the states the primary responsibility for the management of wildlife
programs within their boundaries.
It is unquestioned that "the States have broad trustee and police powers
over wild animals [**29] within their jurisdictions," Kleppe v.
It is the policy of the Congress that the national forests are established and
shall be administered for outdoor recreation, range, timber, watershed, and
wildlife and fish purposes. . . . Nothing herein shall be construed as affecting
the jurisdiction or responsibilities of the several States with respect to
wildlife and fish on the national forests. . . .
16 U.S.C. § 528.
Even in writing specifically "environmental" [**30]
legislation, Congress has adhered to that allocation. Thus, Congress stated in
the National Wildlife Refuge System Administration Act,
The Provisions of this Act shall not be construed as affecting the authority,
jurisdiction, or responsibility of the several States to manage, control, or
regulate fish and resident wildlife under State law or regulations in any area
within the System.
16 U.S.C. § 668dd(c). Similarly, the Wild and Scenic Rivers Act provides
that
(n)othing in this chapter shall affect the jurisdiction or responsibilities of
the States with respect to fish and wildlife.
16 U.S.C. § 1284(a). n7
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n7. When Congress has wished to change this traditional allocation of tasks, it
has done so self-consciously and precisely, as the Endangered Species Act of
1973, 16 U.S.C. § 1531 et seq., demonstrates. The House Committee responsible
for the bill carefully noted that coherent national and international policies
were needed adequately to protect endangered species. H.Rep.No.93-412, 93d
Cong., 2d Sess. 7 (1973). In the Act itself, Congress specifically provided:
Any State law or regulation which applies with respect to the importation or
exportation of, or interstate or foreign commerce in, endangered species or
threatened species is void to the extent that it may effectively (1) permit what
is prohibited by this chapter or by any regulation which implements this
chapter, or (2) prohibit what is authorized pursuant to an exemption or permit
provided for in this chapter or in any regulation which implements this chapter.
This chapter shall not otherwise be construed to void any State law or
regulation which is intended to conserve migratory, resident, or introduced fish
or wildlife, or to permit or prohibit sale of such fish or wildlife.
16 U.S.C. § 1535(f). Even in this Act, however, the House Committee report
continued the comments quoted above by reaffirming the importance of state
management of wildlife:
(T)he states are far better equipped to handle the problems of day-to-day
management and enforcement of laws and regulations for the protection of
endangered species than is the Federal government. It is true, and indeed
desirable, that there are more fish and game enforcement agents in the state
system than there are in the Federal government.
H.Rep.No.93-412, 93d Cong., 1st Sess. 7 (1973).
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Far from attempting to alter the traditional division of authority over wildlife
[*1249] management, FLPMA broadly and explicitly reaffirms it.
Section 302(b) of FLPMA begins by directing that the Secretary shall regulate
"the use, occupancy, and development of the public lands." After a
proviso relating to the use of lands by federal agencies, section 302(b)
continues:
Provided further, That nothing in this Act shall be construed as authorizing the
Secretary concerned to require Federal permits to hunt and fish on public lands
or on lands in the National Forest System and adjacent waters or as enlarging or
diminishing the responsibility and authority of the States for management of
fish and resident wildlife. However, the Secretary concerned may designate areas
of public land and of lands in the National Forest System where, and establish
periods when, no hunting or fishing will be permitted for reasons of public
safety, administration, or compliance with provisions of applicable law. Except
in emergencies, any regulations of the Secretary concerned relating to hunting
and fishing pursuant to this section shall be put into effect only after
consultation with the appropriate [**32] State fish and game
department.
43 U.S.C. § 1732(b) (emphasis added.) n8
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n8. A glance at the legislative history confirms what is plain enough on the
face of the statute Congress intended that the primary responsibility for
wildlife management would lie with the states. The Committee report on the House
version of the bill explained that the bill provides that hunting and fishing
will be permitted in accordance with Federal and State laws and that no Federal
permits for hunting or fishing are authorized by this section. It permits the
Secretaries to close areas to hunting and fishing for reasons of public safety.
The Secretaries are expected to use the authority granted by the bill to close
areas only if essential to the public safety, and then only for the shortest
periods needed to accomplish this purpose. Protection of the public safety
includes prevention and avoidance of hazards to persons, animals, and property.
H.Rep.No.94-1163, 94th Cong., 2d Sess. 6 (1976), U.S.Code Cong. & Admin.News
1976, pp. 6175, 6180. The Conference Report makes the point even more clearly.
The conferees authorize the two Bureaus to ban hunting and fishing for reasons
of public safety, administration, and compliance with applicable law. The word
"administration" authorizes exclusion of hunting and fishing from an
area in order to maintain supervision. It does not authorize exclusions simply
because hunting and fishing would interfere with resource-management goals.
H.Rep.No.94-1724, 94th Cong., 2d Sess. 60 (1976), U.S.Code Cong. &
Admin.News 1976, p. 6231.
We should note that the Conference Report probably overstates its case. Senator
Metcalf, Chairman of the Conference Committee, explained that "in
attempting to define the term "administration,' the statement of managers
confuses the issue and could be wrongly interpreted to prevent the Secretary
from protecting the public lands." 122 Cong.Rec. S17668 (daily ed. Oct. 1,
1976). Likewise, in the House, Representative Melcher, Chairman of the
Subcommittee of the House Interior Committee which handled the bill, engaged in
a discussion with Representative Seiberling which suggested that
"administration" is not to be quite so restrictively defined, as the
following excerpt indicates:
MR. SEIBERLING. Therefore, I take it that the gentleman would agree that the BLM
and the Forest Service could close lands under their jurisdiction to hunting and
fishing for reasons related to the management of the wildlife habitat?
MR. MELCHER. Yes, I would agree to that, but we do expect to cooperate in all
instances possible with the State Fish and Game Commissions to allow those
authorities to set hunting seasons and to set requirements for hunting and
fishing.
122 Cong.Rec. H12009 (daily ed. Sept. 30, 1976).
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The first quoted sentence of section 302(b) self-evidently places the
"responsibility [*1250] and authority" for state wildlife
management precisely where Congress has traditionally placed it in the hands of
the states. The second quoted sentence of the section arguably permits
("may"), but certainly does not require ("shall"), the
Secretary to supersede a state program, n9 and even when he does so, it must be
after consulting state authorities. We are simply unable to read this cautious
and limited permission to intervene in an area of state responsibility and
authority as imposing such supervisory duties on the Secretary that each state
action he fails to prevent becomes a "Federal action." A state
wildlife-management agency which must seek federal approval for each program it
initiates can hardly be said to have "responsibility and authority"
for its own affairs.
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n9. Several parties in these "wolf hunt" cases have urged that the
Secretary has no such power. At one point, the Secretary himself was among
these, though he later withdrew that contention. See note 3 supra. The State of
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Appellees remind us that FLPMA directs the Secretary to "manage the public
lands under principles of multiple use and sustained yield," 43 U.S.C. §
1732(a), and that
"multiple use" means . . . a combination of balanced and diverse
resource uses that takes into account the long-term needs of future generations
for renewable and nonrenewable resources, including, but not limited to,
recreation, range, timber, minerals, watershed, wildlife and fish, and natural
scenic, scientific and historical values . . . .
43 U.S.C. § 1702(c). Appellees also remind us that, pursuant to his
authority under FLPMA, 43 U.S.C. § 1714(e), the Secretary has ordered that some
of the lands on which wolves are to be killed are withdrawn from settlement,
sale, location, entry or selection under the operation of the public land laws,
including but not limited to the mining laws . . . and are reserved and
appropriated for the public purpose of preserving, protecting, and maintaining
the resource values of said lands which would otherwise be lost . . . .
43 Fed.Reg. 59756 (
Nevertheless, the statutory provisions of which appellees remind us are all part
of FLPMA. Section [**35] 302(b) of that Act expressly commands that
"nothing in this Act" enlarges or diminishes the state's
responsibility for managing wildlife. We are therefore unable to conclude that
appellees' citations to FLPMA should alter our understanding of the Secretary's
obligation to prepare an environmental impact statement when he declines to
exercise the power which FLPMA arguably gives him to preempt state
wildlife-management programs. n10
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n10. It is possible to read appellees' complaint as alleging that the Secretary
has violated duties under FLPMA quite apart from FLPMA's effect on his
obligation to prepare an environmental impact statement. However, we do not
understand the District Court to have done more than instruct the Secretary to
halt the killing of wolves until he has prepared an environmental impact
statement. Therefore, although our discussion of FLPMA has necessarily touched
on the limited nature of the Secretary's obligations under the Act, we do not
otherwise reach the question of whether he has violated it.
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The order of the District Court granting a preliminary injunction is reversed.
It is so ordered.